Bolton v. Manistee & Grand Rapids Railroad , 95 Mich. 202 ( 1893 )

Hooker, C. J.

Plaintiff btouglit an action of case against defendant for obstructing a private way. The declaration alleged the purchase of 10 acres of land on August 18, 1873, and a right of way along the south line and across” the adjoining ten acres to a highway, and continuous ownership and possession of' said way until the same was destroyed by the defendant. Said declaration further alleged that defendant willfully and wrongfully constructed a railroad across and upon said right of way, and in such construction—

“ Utterly destroyed said right of way;, that at the southeast corner of said ten acres, across which said right of way extended, said defendant made an excavation ‘of, to wit, eighty feet in depth, thereby making it utterly impossible for said plaintiff to ever use said right of way again; that said defendant also, at, to wit, the time aforesaid, made an excavation on the east line of said land directly across the right of way which the plaintiff had been using for, to wit, seventeen years, aforesaid, and which said right of way belonged to, and was owned by, the plaintiff, which excavation is, to wit, thirty feet in depth, and, to wit, fifty feet in width, and Avhich has such abrupt banks on either side thereof as to make the said right of way utterly impassable; * * * that by reason of the construction of said railroad, and making the excavations aforesaid, said right of way has been utterly destroyed, and is become useless to said plaintiff,” etc.

To prove his cause of action plaintiff introduced a deed dated" August 18, 1873, conveying to him the 10 acres aforesaid. It further conveyed “the right of way along the south line of the south-east quarter of the north-east quarter of the south-east quarter” of the same section. He further proved that he had never used a right of way for the whole distance along said line; that it was impracticable; and that by agreement Avith his grantor he had used another route, commencing at the south-Avest corner, and running along said south line for a short distance, and then north-easterly across said 10 acres, along an old road.

This was a fatal variance. Not only was the way described as being along the south line, but one of the excavations complained of was located at the south-east corner of the parcel, which excavation is alleged to have made it impossible for plaintiff to use the “right of way.” It could not be required to meet another charge for destroying a different way, which crossed its line 25 or 30 rods north of the south-east corner, as appears from the diagram admitted in evidence upon the trial. Wilbur v. Brown, 3 Denio, 356; Batterson v. Railway Co., 49 Mich. 185; Fish v. Barbour, 43 Id. 19.

The jury should have been directed to find a verdict for defendant.

The judgment will be reversed, with costs, and a new trial ordered.

McGrath, Long, and Montgomery, JJ., concurred. Grant, J., did not sit.